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WIBSTIR.N.Y.  14SM 

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CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  IMicroreproductions  /  Institut  Canadian  de  microreproductions  historiques 


I.  ■''«'."■  i'fV^Prtjl 


Technical  and  Bibliographic  Not««/Nota«  tachniquas  at  bibliographiquaa 


Tha  Instituta  ha*  attamptad  to  obtain  tha  bast 
original  copy  availabia  for  filming.  Faaturas  of  this 
copy  which  may  ba  bibliographically  uniqua, 
which  may  altar  any  of  tha  imagas  in  tha 
raproduction,  or  which  may  significantly  changa 
tha  usual  mathod  of  filming,  ara  chackad  balow. 


D 


D 


D 


0 


D 


D 


Coloured  covers/ 
Couvartura  da  coulaur 


I      I    Covers  damaged/ 


Couverture  endommag^a 


Covers  restored  and/or  laminated/ 
Couverture  restaurie  et/ou  pelliculAe 


I      I    Cover  title  missing/ 


Le  titre  de  couverture  manque 


Coloured  maps/ 

Cartes  gdographiques  en  couleur 


Coloured  ink  (i.e.  other  than  blue  or  black)/ 
Encra  de  couleur  (i.e.  autre  que  bieue  ou  noire) 


□    Coloured  plates  and/or  illustrations/ 
Planches  et/ou  illustrations  en  couleur 


Bound  with  other  material/ 
Ralid  avac  d'autras  documents 

Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin/ 

La  re  Mure  serrde  peut  causer  de  I'ombre  ou  de  la 
distortion  la  long  da  la  marge  intiriaure 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  cartaines  pages  blanches  ajout^as 
lors  d'une  restauratior.  apparaissent  dans  la  taxta. 
mais.  lorsque  cela  6tait  possible,  ces  pages  n'ont 
pas  iti  filmias. 


Additional  comments:/ 
Commentaires  suppl^mentairas; 


L'Institut  a  microfilm*  le  meilleur  examplaira 
qu'il  lui  a  At*  possible  de  se  procurer.  Les  details 
da  cat  axemplaira  qui  sont  peut-Atre  uniques  du 
point  da  vue  bibliographique.  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  m^thoda  normale  de  filmage 
sont  indiquAs  ci-dessous. 


□   Coloured  pages/ 
Pages  de  couleur 

n    Pages  damaged/ 
Pages  endommagias 

I      I    Pages  restored  and/or  laminated/ 


D 


Pages  restaurias  et/ou  pelliculies 

Pages  discoloured,  stained  or  foxed/ 
Pages  d6color6es.  tachetdes  ou  piqudes 


□    Pages  detached/ 
Pages  ditachdes 

0Showthrough/ 
Transparence 


Transparence 

Quality  of  print  varies/ 
Qualit^  indgala  de  I'impression 

Includes  supplementary  material/ 
Comprand  du  material  supplimantaire 

Only  edition  available/ 
Saula  Edition  disponible 


Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pages  totalemsnt  ou  partiellement 
obscurcies  par  un  feuillet  d'errata,  u  le  pelure, 
etc..  ont  dti  film6es  6  nouveau  de  fagon  d 
obtenir  la  meilleure  image  possible. 


This  item  is  filmed  at  tha  reduction  ratio  chackad  below/ 

Ce  document  est  film*  au  taux  da  reduction  indiqu*  ci-dassous. 

10X  14X  18X  22X 


26X 


30X 


/ 


12X 


16X 


20X 


24X 


7SX 


32X 


Ills 

du 

difier 
une 
lage 


Th«  copy  film«d  h«re  hs«  b—n  reproduced  thanks 
to  the  g«n«rosi'<y  of: 

National  Library  of  Canada 


The  image*  appearing  here  are  the  best  quality 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  keeping  with  the 
filming  contract  specifications. 


L'exemplaire  film4  fut  reproduit  grAce  k  la 
gAn^rosit*  de: 

BibliothAque  nationale  du  Canada 


Las  images  suivantas  ont  Ati  reproduites  avec  le 
plus  grand  soin,  compte  tenu  de  la  condition  ot 
de  la  nattet*  de  rexemplaire  filmA.  et  en 
conformity  avec  les  conditions  du  contrat  de 
filmage. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


Les  exemplaires  originaux  dont  la  couverture  en 
papier  est  imprimte  sont  filmte  en  commen^ant 
par  le  premier  plat  et  en  terminant  soit  par  la 
derniire  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration.  soit  par  le  second 
plat,  selon  le  cas.  Tous  les  autres  exemplaires 
originaux  sont  filmAs  en  commenpant  par  la 
premiere  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  et  en  terminant  par 
la  derniAre  page  qui  comporte  une  telle 
empreinte. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  ^^>  (meaning  "CON- 
TINUED"), or  the  symbol  V  (meaning  "END"), 
whichever  applies. 


Un  des  symboles  suivants  apparattra  sur  la 
dernidre  image  de  cheque  microfiche,  selon  le 
cas:  le  symbols  —►  signifie  "A  SUIVRE",  le 
symbols  ▼  signifie  "FIN". 


Maps,  plates,  charts,  e\tc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Les  cartes,  planches,  tableaux,  etc.,  peuvent  dtre 
filmte  A  des  taux  de  reduction  dlffirents. 
Lorsque  le  document  est  trop  grand  pour  Atre 
reproduit  en  un  seul  cliche,  il  est  film6  d  partir 
de  Tangle  supArieur  gauche,  de  gauche  d  droite, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  n6cessaire.  Les  diagrammes  suivants 
illustrent  la  mdthode. 


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CASES  AND 


SUBMITTED  TO  EVEKY 

t 

CITIZEN  OF  THE  UNITED  STATES, 


AKD  ESPECIALLT 

tHE  MEMBERS  OF  THE  ADMINISTRATION 

•  ■■''''  -',.  -      hxfuow   ■■'.,:.     -  '    I..     .. 

BOTH  HOUSES  OF  CONGRESS, 

TO  BE  IMPARTIALLY  CONSIDERED  BY  THEM. 


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♦ 


-       ^                      -X-^^k                ^^ 

»  — 

^f              NEW-'YORK: 

' 

PUBLISHED  BY  E.  SARGEANT, 

^   Na  39  WaU-ftrect"  t 

1809. 

'                   '' 

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0^  THERE  is  no  treaty  or  other  convention 
between  us  and  Great-Britain  j  and,  as  it  respects 
France,  the  follozving  Cases,  and  the  reasonings 
from  them,  are  as  supposing  there  is  none  between 
us  and  her,  defining  or  declaring  what  shall  be 
deemed  the  rule,  in  the  respective  cases,  relative 
to  the  mutual  rights  and  duties  between  a  bellige- 
rant  and  a  neutral. 


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CASES  AND  QUERIES, 


■"fj  ■;     I,:    .  t'  JiJJUii 


Ifc. 


• ;  I- 


.   «  !  ( i ; 


■  ^■■^^»ii^ 


FIRST  CASE. 


["^JL 


■r'r  V 


!    f    J'     »■     \\t.. 


Neither  France  or  Great  Britain  had  ev«, 
er,  prior  to  the  French  decree  of  Berlin,  claim- 
td  it  tiB  the  rule  or  law,  between  belligeraats 
and  nentralfl,  that  the  vcisel  of  the  neutral  be- 
ing bound  tea  port  oione,  is,  t^ itself,  sufficient 
tause  of  capture,  tc  the  oilier,  of  the  bell^ge- 
rant  parties*— France  has  by  the  above  decr^^e 
dakned^  or  asfuaied,  such  to  be  the  rule,  and 
has  accordingly  captured  our  vessdb,  and  con- 
demned them,  with  their  cargoes,  when  bound 
to  a  British  port;  and  we  having  submitted  to 
the  claim,  or  (and  which  is  the  same  things) 
we  having  iMdkr^AV/^i/,  by  arms,  the  exercise  of 


\  ■  .1 


v/  • 


-!*,> 


.    \ 


d 


CASES  AND  QUERIES. 


it.  Great  Britain,  while  she  admits  that  no  such 
7'ide  exists,  at  the  same  time,  claims,  that  we 
having  submitted  to  it  when  claimed  by  France, 
she  is  thereby,  and  as  against  us,  entitled  also 
to  avail  herself  of  it,  and  accordingly  captures 
and  condemns  our  vessels,  with  their  cargoes, 
when  bound  to  a  French  port. 


SECOND  CASE. 


■/  lil.il   i. 


.  >  •■  , » 


,.  }i 


;*       I 


As  to  the  right  to  capture  the  goods  of  an 
enemy  on  the  seas .,  Great  Britain  claims  the  rule 
to  be,  that  free  ships  do  not  make  free  goods. 
Supposing  France  to  admit  the  contrary  to  be 
the  rule,  that  free  ships  da  make  free  goods, 
then  Great  Britain  would  capture  and  con- 
demn French  property  on  board  our  vessels; 
whereas,  France,  according  to  the  rule,  as  ad- 
mitted by  her,  must  let  British  property  on 
board  our  ships,  pass,  sls  free;  and  supposing 
us  to  submit  to  the  rule,  as  claimed  by  Cre^ 


CASES  AND  QUERIES.  7 

Britain  j  then  Query  :  would  we  be  entitled  to 
hold  France  to  the  rule,  as  admitted  by  her,  or 
would  she  not,  as  against  us,  be  entitled  to  avail 
herself  of  it,  as  claimed  by  Great  Britain.  ? 


•i. 


I  'i 


-.  '  . .    -ri 


THIRD  CASE. 


'        I':  ii*   •»  I 


As  to  the  rule  concerning  articles  contraband 
of  ivar — ^Suppose  France  to  claim  provisions  to 
be  within  the  rule,  and  Great  Britain  to  admit 
them  to  be  7iot  within  it ;  in  that  case  France 
would  capture  and  condemn  provisions  on  board 
our  vessels,  bound  to  a  British  port,  whereas 
Great  Britain,  according  to  the  rule  as  admitted 
by  her,  must  let  the  provisions  on  board  our 
vessels,  bound  to  a  French  port,  pass,  as  inno- 
cent. Here  therefore  again,  only  changing  the 
places  of  the  two  belligerant  parties,  the  like 
question  occurs  : — If  then,  in  the  second  case, 
France  would  have  a  right  to  capture  British 
property  found  on  board  our  vessels,  and  if  in 


CASES  AND  QUERIES. 


the  third  case,  Great  Britain  would  have  aright 
to  capture  provisions  on  board  our  vessels  bound 
to  a  French  port,  does  it  not  Ibllow  that  she  ha» 
now,  in  consequence  of  the  French  decree,  au' 
thorizing  the  capture  of  our  vessels  when  bound 
to  a  British  port,  and  our  submission  to  it,  a 
right  to  capture  onr  vessels  when  bound  to  a 
French  port  ?  or,  are  not  the  first  case  and  the 
second  and  third  cases  the  same  in  principle,  as 
it  respects  the  right  of  a  belligerant,  when  its 
opposite  belligerant  has  assumed  a  rule  of  cap- 
ture against  neutrals,  and  a  neutral  has  submit- 
ted to  it,  also  to  assume  against  the  neutral  so 
submitting^  the  like  rule  ?  and  does  it  not  then 
further  follow,  that  the  right  of  Great  Britain 
to  capture  our  vessels  when  bound  to  a  French 
port,  rests  wholly  on  the  rule  or  law  that  neu- 
trality  must  not  only  be  impartial,  as  free  from 
collusion,  but  also  equal,  between  the  neutral 
and  both  the  beIHgerants,  so  that  the  neutral  is 
not  to  submit  to  the  enjoyment  of  a  right  against 
her  by  one,  and  resist  the  exercise  or  enjoyment 


CASES  AND  QUEHIES. 


9 


of  it  by  the  ol/ter.  Neither  of  tliem  is  to  be,  as 
it  were,  the  more  favoured  party  with  the  neu- 
tral. It  is  a  rule  of  universal  law,  that  '*  equity 
iseqiioUtyt'  and  it  is  convertibky  a  want  q{  equal- 
ity  is  a  want  of  f 7m//j/ ;  and  is  it  not  essential  to 
equality  between  us  and  Great  Britain,  that  as 
long  as  we  submit  to  the  rule  priorly  assumed 
by  France,  to  capture  our  vessels  when  bound 
to  a  British  port,  we  are  not  entitled  to  resist 
Great  Britain  when  she  subsequently  assumes  the 
like  rule,  and  captures  our  vessels  when  bound 
to  a  French  port?  Is  not  Great  Britain  entitled 
to  tell  us,  that  although  we  would  have  been  jus- 
tifiable in  considering  the  decree  as  an  act  of 
hostility ^  and  instantly  made  reprisals,  and  if  so, 
that  a  state  of  war  would  now  exist  between  us 
and  France,  yet,  that  we  having  elected  to  con- 
sider it  as  an  act  done  under  colour  of  a  right, 
and  if  so,  that  until  discussion  and  disagree- 
ment between  us  and  France,  we  persisting  to 
deny,  and  she  to  assert  and  exercise  the  right, 
and  the  disagreement  followed  up  by  resistance 


10 


CASES  AND  QUERIES. 


on  our  part,  a  state  of  peace  still  continues  be- 
tween us  and  France,  she  (Great  Britain)  is 
Content,  as  between  her  and  us,  formallij  to  (iffinn 
the  French  decree  as  an  act  done  under  coloin' 
of  right,  and  accordingly,  that  she  is  entitled 
to  have  the  captures  by  her  of  our  vessels  bound 
to  a  French  port,  considered  by  us  as  acts  un- 
der the  like  right?  It  must,  however,  be  at  the 
same  time  stated,  that  if  she  insists  on  the  aflfir- 
mative  of  this  question  from  us,  it  will  follow, 
that  the  instant  we  elect  to  consider  the  decree 
as  an  act  of  hostility,  by  resisting  it  as  such,  even 
perhaps  if  the  resistance  should  be  only  a  con- 
voy of  our  vessels  bound  to  British  ports,  she 
has  no  longer  a  right  to  capture  our  vessels 
bound  to  a  French  port — that  this  right  in  her 
depending  on  our  submission  to  the  French  de- 
cree as  its  cause,  the  instant  the  cause  ceases, 
the  right,  as  its  effect,  then  also  ceases — that  she 
has  then  no  longer  reason  to  complain  of  ine- 
quality :  she  has  no  longer,  as  it  were,  an  equity 
from  us  to  be  satisjied — and  that  if  she  should 


CASES  AND  QUERIES. 


11 


then  continue  to  capture  and  condemn  our  ves- 
sels, with  their  cargoes,  bound  to  French  port^ 
it  must  be  on  some  other  ground,  than  as  being 
entitled  to  an  equaUti/  of  right,  against  us,  with 
France — as,  for  instance,  for  supposed  hi^eack  of 
blockade.  The  question  of  blockade,  however, 
or  whether  a  belligerant  has,  under  any  circum- 
stances, a  right  by  mere  proclamation,  or  any 
other  act  to  the  effect  of  a  proclamation,  or  in 
any  manner  without  an  flc^2/fl/ competent  force, 
a  right  to  constitute  a  blockade,  and  so  to  cap- 
ture and  condemn  the  vessel  of  a  neutral  at^ 
tempting  to  enter  the  declared  blockaded  port  ? 
not  having  any  necessary  relation  to  the  other 
questions  intended  to  be  examined,  is  therefore 
passed  by.  Great  Britain  will  also,  probably, 
as  under  her  supposed  rule,  known  as  the  ruU^ 
of  '56,  continue  to  capture  our  vessels  when 
found  in  the  French  colonial,  as  being  to  us  an 
unaccustomed,  trade.  This  rule  will  be  so  far  no- 
ticed, as  to  test  it  with  the  rule  or  principle  of 
equality. 


CASES  AND  QUERIES. 


To  return  to  the  intended  subject  of  inquiry  i, 
j^^tTii6^on\y  many  among  us^  but  even  the  British 
ministry  themselves,  endeavour  to  justify  the 
claim  of  Great  Britain  to  assume  the  like  rule, 
priorly  assumed  by  France,  or  the  British  orders 
in  council,  the  acts  exercising  or  enforcing  the 
claim,  l)y  considering  them  as  acts  of  retaliation 
on  France.  If  the  above  reasoning  is  correct, 
then  to  place  the  claim  on  the  ground  of  ixtalia- 
^/(??^  is  certainly  a  mistake.  This,  however,  will 
make  no  difference,  as  it  respects  our  conduct 
to  Great  Britain,  in  reference  to  the  claim.  The 
question  between  us  and  her  is,  whether  the 
claim  is,  or  is  not  just  in  itself?  and  not,  wheth- 
er the  true  ground  of  it  has  been  un perceived  ? 
There  may  be  an  act  of  reprisal  by  one  nation 
against  another,  till  then  at  peace,  as  a  mean  to 
obtain  reparation  for  an  injury,  but  I'etaliation 
supposes  a  then  already  state  of  xvar,  and  not 
thereby  to  be  repaired  for  injury,  but  to  punish 
for  cruelty.  As  between  the  belligerants  them- 
selves,  their  rights  are  in  one  sense  imlitnited, 


CASES  AND  QUERIES. 


13 


«illier  of  them  may,  for  its  own  preservation, 
pursue  the  other  to  destruction :  but  still  thote 
rights  are,  in  another  sense,  limited  by  certain 
temperaments  J  as  the  jurists  express  themselves, 
or  7nitigations  of  the  rights,  acknowledged  and 

observed  by  civilized  nations  j  and  every  exer- 
cise of  a  right  beyond  the  due  temperament,  ac- 
cording to  the  circumstances  of  the  case,  \scru' 
city.  A  helligerant  has  a  right  to  the  life  of  his 
enemy  -,  but  he  may  not  take  it  away  in  cold 
blood,  as  it  is  phrased ;  according  to  a  due  tem- 
perament, or  mitigation  of  the  right,  it  is  cruelty 
in  him ;  and  it  is  for  acts  of  this  nature  that  one 
belligerant  retaliates  on  the  other.  Indeed, 
^having  ^ready  the  greater  Vight  to  the  life,  or 
jyerson  of  the  enemy,  and  consequently  the  lesser 
right  to  his  property  when  captured,  there  is 
nothing,  as  a  distinct,  ov  farther  subject,  left,  on 
which  an  v^ci  oi  retaliation,  viewed  as  an  act  by 
one  belligerant,  to  obtain  reparation  for  da?nage 
arising  from  an  act  by  the  other  belligerant, 
considered  as  an  itijury,  can  operate.    Retalia- 


14 


CASES  AND  QUERIES. 


tion  can  therefore  be  only  punitive,  or  with  in- 
tent only  either  to  amend  or  deter  ;  and  there- 
fore, must  necessarily  be  inflicted  immediatebj 
on  the  guilty  party:  and  if  it  affects  a  third,  or 
innocent  party,  it  must  be  only  consequentially, 
or  casually  so ;  but  in  the  present  case.  Great 
Britain  captures  and  condemns  our  vessels  and 
cargoes,  we  being  the  third  or  innocent  party, 
France  having  no  interest  in  them,  not  to  be  gain- 
er by  their  safe  arrival^  nor  a  loser  by  the  capture 
and  condemnation  of  them  by  Great  Britain;  and 
this  capturing  our  vessels  and  cargoes  by  Great 
Britain,  is  with  intent  thereby  to  prevent  France 
from  the  benefit  she  might  otherwise  have  from 
the  trade  carried  on  between  her  and  us  in  our 
01V71  vessels,  and  on  our  own  account,  and  so  to 
affect  her,  in  its  consequences  to  her  detriment, 
and  thereby  to  coerce,  or  induce  her  to  revoke 
her  decree.  Surely  this  sort  of  retaliation  is  in- 
verting the  very  nature  and  order  of  things  ! 
but  it  ought  to  suffice  to  shew  the  futility  of 
the  notion  of  retaliation,  as  applicable  to  the 


CASES  AND  QUERIES. 


15 


case,  that  the  effect  of  the  British  orders  in 
council  has  happened  to  be  the  very  reverse  of 
punitive;  for  if  the  French  decree  has  produced 
the  British  orders,  and  if  they  have  produced 
our  embargo,  then  the  decree  has  eventually 
produced  a  consummation^  than  which  it  is  not 
possible  to  conceive  one  more  devoutly  io  have 
been  wished  for  by  the  individual  possessing  the 
sovereignty  of  France :  that  very  enemy  on 
whom  it  would  seem  even  Great  Britain  herself 
imagines  she  is  rf/a//fl//w^  for  it. 


Now  briefly  to  notice  the  British  rule  of  '56. 
It  is  requisite  previously  to  state,  that  a  duty 
from  a  neutral  to  a  belligerant,  involves  a  cor- 
respondent or  correlative  right  in  the  bellige- 
rant, to  require  the  observance  of  it;  and  in  the 
converse,  a  right  in  the  neutral  involves  a  corres- 
pondent  duty  in  the  belligerant . —that  rights 
and  duties  are  founded  equally  between  na- 
tions as  between  individuals,  in  morality — that 
a  breach  of  duty  being  immoral,  a   claim  of  a 


16 


CASES  AND  QUERIES. 


right  by  either  one  of  the  parties  not  involving 
or  necessarily  supposing  a  correspondent  duty 
in  the  other,  to  allow  the  exercise  or  enjoyment 
of  it,f*s  an  immoral  act — that  acts^y  one  bellig- 
erant  occasioning  loss  or  damage,  and  immedi- 
ately affecting  a  neutral,  are  to  be  distinguished 
between  those  done  as  from  necessitijy  and  those 
done  as  under  a  belligerant  right,  a  right  aris- 
ing from  the  relation  or  condition  the  parties 
stand  in  to  each  other,  the  one,  the  belligerant, 
being  at  war  with  another  nation,  and  the  other, 
the  neutral,  being  at  peace  with  both — that,  as  to 
acts  of  the  former  class,  necessity  having  no  law, 
all  perhaps  that  is  requisite  to  justify  them,  is 
that  they  be  not  done  rashly,  that  they  be  done 
in  good  faith,  as  from  necessity,  and  not  under 
pretence  of  it,  and  that  recompense  be  made  for 
them ;  hence  a  belligerant  may,  for  his  safety 
or  preservation,  capture  the  vessel  and  cargo  of 
a  neutral,  and  detain  them  till  the  necessity 
ceases,  or  use  them  as  if  taken  by  impress,  but 
be  must  always  make  recompense  i  and  that  as  to 


CASES  AND  QUEllIES. 


ly 


the  acts  of  the  latter  class,  and  in  reference  to 
the  right  of  capture  on  the  seas,  the  subject  of 
the  present  inquiry,  the  right  to  capture,  in- 
cludes, or  draws  after  it,  as  a  consequence,  a 
right  to  condemn  or  cunfiscatCi  and  which  can 
only  be  for  a  fault  or  wrong  in  the  neutral,  con- 
sisting in  a  non-observance  or  breath  of  his  dufi/ 
of  neutrality.      '  ■:  ■':   ','■.'<■;.•  I   -f  •*;.•.■'   ..i  »  .• 

These  matters  being  premised,  it  is  now  to  be 
stated,  that  what  has  been  advanced  to  prove 
equality  to  be  the  only  foundation  of  rights  be- 
tween belligerants  and  neutrals,  may  be  reduced 
to  these  two  propositions— First,  that  a  bellige- 
rant  cannot  lfgally  claim  any  thing  as  a 
right  against  the  neutral,  which  the  other  bel- 
ligerant  may  not  also  legally  claim :  and  second- 
ly, that  where  one  belligerant  has  claimed  and 
exercised  a  right,  and  the  neutral  has  submitted 
to  it,  the  other  belligerant  may  LEGALLY  exer* 
cise  it  also.  If  these  propositions  are  true, 
then  the  question  presents  itself— -Is  the  Brit- 

C 


18 


CASES  AND  QUERIES. 


isli  rule  of  '56  just?  and  this  is  a  question  sug- 
gested to  the  present  judge  of  the  British  admi- 
ralty, to  be  reviezved  by  him,  and  impart i ally,  be- 
tween us  and  Great  Britain — is  he  not  pledged, 
that  when  called  upon,  he  will  ? — Hear  him,  in 
deciding  between  Great  Britain  and  Sweden,  in 
the  case  of  the  Swedish  convoy,  and  it  deserves 
to  be  written  in  letters  of  gold.  "  In  forming 
"  my  judgment,  I  trust  that  it  has  not  escaped 
"  my  anxious  recollection  for  one  moment,  what 
"  it  is  that  the  duty  of  my  station  calls  from  me; 
"  namely,  to  consider  myself  as  stationed  here 
'*  not  to  deliver  occasional  and  shifting  opinions 
"  to  serve  present  purposes  of  particular  nation- 
"  al  interest,  bat  to  administer  with  indifference 
*'  ih^i  justice  which  the  law  of  natiom  holds  out, 
"  zvithout  distinction,  to  independent  states,  some 
"  happening  to  be  neutral,  and  some  to  be  bcl- 
"  ligcrant.  The  seat  of  judicial  authority  is  iu- 
"  deed  locally  here,  in  the  belligerant  country, 
"  according  to  the  known  law  and  practice  of 
"  nations  :  but  the  laxv  itself  has  n&  locality.     It 


CASES  AND  QUERIES. 


19 


V4 

(C 

i( 
(( 
i( 


is  the  duly  of  the  person  who  sits  here  to  de- 
termine this  question  exactly  as  he  would  de- 
termine the  same  question  if  sitting  at  Stock- 
holm s  to  assert  no  pretensions  on  the  part  of 
Great  Britain,  which  he  ivoiild  not  allow  to 
Sweden  in  the  same  circumstances,  and  to  im- 
pose no  duties  on  Sweden,  as  a  neutral  country, 
which  he  would  not  admit  to  belong  to  Great 
Britain  in  the  same  chai^acter'*,  rfi,    iiil   ii.iO 

'\\''hat  the  rule,  alluded  to,  was  IN  *56,  is  dil'i 
iicult,  perhaps  impossible,  now  to  af^ertftiu,  it 
not  being  any  where  to  be  found|j(;z  te?'ms,  and, 
there  not  being  reports  of  condemnations,  if  any, 
under  it  during  the  succeeding  period  of  the 
then  war,  and.  so  to  be  considered  as  cotempera- 
neous  expositions  of  it.  From  a  reference  to  it 
by  Lord  Mansfield,  in  1761,  it  would  seem  as  if 
it  was  intended  to  apply  only  to  a  neutral  vessel 
trading  to  a  belligerant  colony,  with  all  the  pri- 
vileges of  ,a  belligerant  vessel,  and  consequently 
to  be  deemed  such,  and  therefore  liable  to  cap- 


q6 


CASES  AND  QUERIES. 


ture  and  condemnation.  His^ordsare — "  the 
'*  rule  is,  that  ifufieutral  ship  trades  to  a  French 
"  coloni/  with  all  the  privileges  of  a  French  ship, 
"  and  is  thu.f  adopted  and  naturalized,  it  must 
"  be  looked  tipon  as  a  French  ship,  and  is  liable 
"  to  be  taken."  The  present  judge  of  the  Brit- 
ish admiralty,  in  1799>  understands,  or  explains. 
Of  expounds  the  rule,  when  exempliiied  between 
Great  Britain  and  France  as  the  belligerants, 
to  be,  in  substance,  that  it  is  not  competent  for 
a  neutral  to  accept  from  France,  during  the 
present  war^  a  permission  to  carry  on  a  trade 

with  her  coloniesj  which  the  neutral  was  not  ac- 
•I ' 

customed  to  have  in  time  o^ peace ^  **  because,  as 
he  expresses  himself,  Great  Britain  having,  by 
her  superiority/  at  sea,  brought  France  un- 
'*  der  an  entire  inability  to  supply  her  colonies, 
'*  and  export  their  produets^  the  permission  to 
'*  neutrals  to  trade  with  her  colonies  does  not 
'*  proceed  from  her  loill,  but  her  necessity ;  it  is  a 
"  measure  not  of  French  cduncils  but  «f  British 
'*  force ;  and  that  ihh predominance  of  the  Brit- 


('( 


(( 


CASES  AND  QUERIES. 


*<  ish  force  at  sea  is  the  true  FOUNDATION  of  the 
**  principle.**  Hence  it  follows,  that  Great  Britain 
not  being  reduced  to  this  state  of  inabilihj,  it 
would  be  morally  right  in  us  to  accept  involv- 
ing that  it  would  be  morally  right  in  Great  Bri- 
tain to  grant i  a  permission  to  carry  On  a  trade 
with  her  colonies,  beyond  what  we  were  accus* 
tomed  to  carry  on  with  them  in  titne  of  peace  t  and 
if  so,  thenit  would  be  morally  wrong  in  France 
to  capture  our  vessels  and  cargoes,  and  condemn 
them,  for  carrying  on  such  unaccustomed  trade^ 
inasmuch  as  she  is  not  in  conditiofi,  she  wants, 
as  it  Were  the  requisite  qualijications,  to  entitle 
herself  to  the  rule  j  she  is  not  superior  or  domi- 
?iant  at  ^efl— Great  Britain  practised  on  the  rule 
as  so  understood,  or  on  the  supposed  difference  of 
condition  between  her  and  France,  when  in  1794 
she  offered  us  a  trade  with  her  colonies.  Suppos- 
ing then  Great  Britain  to  capture  our  vessels 
when  found  in  the  French  colonial  trades  and  sup- 
posing France,  if  we  had  accepted  from  Great 
Britain  the  offer  referred  to,  had  captured  our 


.  '■7ii-Mi:'«J.'^it2rawj'>L'6-lStsli 


A 


CASES  AND  QUERIES. 


vessels  when  found  in  the  'British  colonial  trade, 
would  Great  Britain  be  lentitled  to  require  from 
us  to  resist  France  ?  Undoubtedly  in  orle*"  to 
be  consistent  with  herself  she  must  >^a  '  vH'm* 
cd  herself  to  be  so  entitled,  and  mus*  a*^  >rding- 
\y  have  arf/«///frf  that  whenever  i'-ance  becomes 
snperior  at  sea,  she  wtll  ilien  have  the  right  to 
capture  our  vessels  when  found  in  the  British 
col6nial  trade,  and  that  then  the  right  of  Great 
Britain  to  capture  our  vessels,  when  found  in 
the  French  colonial  trade  ceases  until  she  again 
becomes  superior:  in  short,  that  the  right  as  it 
were  opens  and  shuts  according  as  the  superioriftfy 
,of  the  one  or  the  other  nation,  shall  from  time  to 
time  happen  to  exist ; — that  she  having  now  the 
superiority  the  right  has  opened  to  her  and  is  shut 
against  France  thnt  xvhen  France  shall  acquire 
the  superior itr  it  w.fi  ;nen  bv.  xhut  against  her 
and  open  to  Frances  and  it  is  in  this  way  that  the 
equdlity,  as  to  the  right  or  the  enjoyment  of  it, 
is  to  take  place  between  her  and  France. 


f.'ti.i       r    i  !     i;. 


CASES  AND  QUFRIES. 


e.S 


f  ask,  and  I  ask  it  in  the  name  of  reasojt,  what 
kind  oi equality  is  this?  J  ask  what  kind  of  a 
rule  must  it  be,  which,  when  analyzed  i  solves 
itself  into  the  conclusion,  that  the  right  t  abel- 
ligerant  to  capture  the  vessel  of  a  neutral  n  an 
7in accustomed  trade  with  his  enemy,  dt/  id  on 
the  fact,  whether  the  belligerant,  or  hi  enethy, 
is  for  the  time  supc  rior  at  sea  ? — Such  however  i 
virtually  adjudged  ')y  the  judge  of  the  h 

admiralty  to  be  the  FOUNDATION  of  the        . 


Great  Britain  is  now  predominant  on  the  oct  n ; 
but  it  behoves  her  to  bear  in  mind,  that  Frai  e 
may  be  permitted  to  bt  come  predominant  th' 
in  turn,  and  to  be  the  instrument  to  scourge  her 
from  which,  however,  may  all-gracious  heaven 
forbear!  for  surely  every  friend  to  truth, justice, 
knowledge,  religion,  anu  whatever  hath  aught 
of  moral  or  intellectual  worth  or  excellence, 
must  have  an  anxious  distressing  concern  for  her 
fate,  and  that  she  may  be  spared  from  the  iyidig- 
nation;  there  being  much  reason  to  dread  that 


^^ti!--^   ■■m- 


'i4 


CASES  AND  aUEItlES. 


i  k 


if  she  perishes,  it  will  all  perish  with  her,  and 
that  universal  bondage,  debasement,  ignorance 
and  gloom  will  ensue. 


m 


-^"  N'ox  atra  caput  tristi  circumvolai  uinhvaj' 


\  i 


lMPARTIAr>. 


VlNll?. 


W 


